Citation Nr: 0411002
Decision Date: 04/27/04 Archive Date: 05/06/04
DOCKET NO. 02-15 890 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to an increased rating for bilateral hearing loss,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran, his spouse, and his daughter
ATTORNEY FOR THE BOARD
Christopher P. Kissel, Counsel
INTRODUCTION
The veteran served on active duty during World War II,
specifically, from January 1942 to December 1945.
This case comes to the Board of Veterans' Appeals (the Board) on
appeal from a May 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Oakland, California.
The veteran along with his wife and daughter testified at a
personal hearing held on September 18, 2003 at the RO before the
undersigned Acting Veterans Law Judge. A transcript of that
hearing has been associated with the veteran's VA claims folder.
FINDINGS OF FACT
1. The veteran's bilateral hearing loss is currently manifested
by level XI hearing impairment in the right ear and no more than
level II hearing impairment in the left ear under the schedular
criteria.
2. The bilateral hearing loss does not present such an
exceptional or unusual disability picture to render impractical
the application of the regular schedular standards.
CONCLUSIONS OF LAW
1. The criteria for an increased disability rating for bilateral
hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. §§ 4.85, 4.86 (2003).
2. Application of the extraschedular provisions for the bilateral
hearing loss disability is not warranted. 38 C.F.R. § 3.321(b)
(2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is seeking entitlement to an increased disability
rating for his service-connected bilateral hearing loss, currently
evaluated as 10 percent disabling.
In the interest of clarity, the Board will initially discuss
certain preliminary matters. The Board will then address the
pertinent law and regulations and their application to the facts
and evidence.
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114
Stat. 2096 (2000) (the VCAA) [codified as amended at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107 (West 2002)]. This law
eliminated the former statutory requirement that claims be well
grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA
includes an enhanced duty on the part of VA to notify a claimant
as to the information and evidence necessary to substantiate a
claim for VA benefits. The VCAA also redefines the obligations of
VA with respect to its statutory duty to assist claimants in the
development of their claims. Regulations implementing the VCAA
have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2003).
The VCAA is applicable to all claims filed on or after the date of
enactment, November 9, 2000, or filed before the date of enactment
but not yet final as of that date. In this case, the veteran's
appeal remains pending before the Board and therefore, is not
final. 38 U.S.C.A. § 7104(a) (West 2002). The provisions of the
VCAA and the implementing regulations are, accordingly,
applicable. See Holliday v. Principi, 14 Vet. App. 280, 282-83
(2001) [the Board must make a determination as to the
applicability of the various provisions of the VCAA to a
particular claim].
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board will now
address these concepts within the context of the circumstances
presented in this case.
Standard of review
The current standard of review is as follows. Once all the
evidence has been brought together, the Board has the
responsibility to evaluate the record on appeal. See 38 U.S.C.A.
§ 7104. When there is an approximate balance of the evidence
regarding the merits of an issue material to the determination of
the matter, the benefit of the doubt in resolving each issue shall
be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38
C.F.R. §§ 3.102, 4.3 (2003). In Gilbert v. Derwinski, 1 Vet. App.
49, 53 (1990), the United States Court of Appeals for Veterans
Claims (the Court) stated that "a veteran need only demonstrate
that there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its merits,
the evidence must preponderate against the claim. Alemany v.
Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at
54.
The Board will apply the current standard in adjudicating the
veteran's claim for an increased rating for bilateral hearing
loss.
Notice
The VCAA requires VA to notify the claimant and the claimant's
representative, if any, of any information and any medical or lay
evidence not previously provided to the Secretary that is
necessary to substantiate the claim. As part of the notice, VA is
to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the evidence
is to be provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant. See 38 U.S.C.A. §
5103; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002)
[letter from VA to claimant describing evidence potentially
helpful to claimant but not mentioning who is responsible for
obtaining such evidence did not meet the standard erected by the
VCAA].
The Board observes that over the course of this appeal, the
veteran was notified by May 2002 rating decision and the September
2002 statement of the case of the pertinent law and regulations
governing his claim seeking an increased rating for bilateral
hearing loss.
Significantly, the record shows that the RO furnished the veteran
a letter in March 2002 advising him of the provisions relating to
the VCAA, to include advising him that he could provide the names,
addresses, and approximate dates of treatment for all VA and non-
VA health care providers. He was informed as well that he could
provide VA authorization to obtain any private medical records by
completing the appropriate forms (VA Form 21-4142), copies of
which were enclosed with the letter. The Board notes that even
though the letter requested a response within the next 60 days, he
also was expressly notified that he had one year to submit the
requested information and/or evidence, in compliance with 38
U.S.C.A. § 5103(b). The one-year period has since expired. The
veteran has not filed any statement or provided further
information regarding the need to obtain any additional relevant
evidence pertinent to his claim. The Board is therefore satisfied
that he was notified properly of his statutory rights. See
Paralyzed Veterans of America, et. al. v. Secretary of Department
of Veterans Affairs (PVA), 345 F.3d 1334 (Fed. Cir. 2003).
Moreover, the factual scenario in the PVA case is inapplicable to
the specific circumstances of this case. In PVA, the U. S. Court
of Appeals for the Federal Circuit was concerned with the
"premature denial" of a claim before the one-year period for
submitting evidence had expired. In other words, the Federal
Circuit wanted to ensure that a claimant had sufficient time to
submit evidence before an adjudication was made. Here, the
veteran has had in excess of a year to submit evidence in support
of his claim. It does not appear that he has any additional
evidence or information to submit.
Also, the Federal Circuit's concern in PVA that a claimant would
be unaware of the time he had left to submit evidence is
inapplicable in the specific circumstances of this case. As
alluded to above, the veteran in this case has been made aware on
several occasions, e.g., in response to the rating decision,
statement of the case and the 90-day notice of transfer of the
claims file to the Board, that he had more time to submit
evidence, and no additional evidence appears to be forthcoming.
Since this claimant has, as a matter of fact, been provided at
least one year to submit evidence after the VCAA notification
letter of March 2002, and it is clear that he has nothing further
to submit, the adjudication of his claim by the Board at this time
will proceed.
In view of the foregoing, it appears that VA has all the
information needed to decide the case, and therefore, it would be
pointless to wait still longer to adjudicate this appeal when it
is clear that no additional evidence is forthcoming. See e.g.
Wensch v. Principi, 15 Vet. App. 362 (2001) [VCAA does not apply
where there is extensive factual development in case which
indicates no reasonable possibility that any further assistance
would aid the claimant in substantiating his claim].
One further point is in order regarding the VCAA notice sent in
this case. In a recent decision, the Court held, in part, that a
VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim for benefits. See
Pelegrini v. Principi, 17 Vet. App. 412 (2004). In this case,
however, the VCAA notice letter was sent prior to the first AOJ
adjudication of the claim, and the record clearly shows that the
veteran was provided every opportunity to submit evidence and
argument in support of his claim and to respond to the VA notice.
Therefore, the Board concludes that to decide the appeal now would
not be prejudicial to the veteran. See 38 C.F.R. § 20.1102
(2003).
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary to
substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the assistance
provided by VA shall include providing a medical examination or
obtaining a medical opinion when such an examination or opinion is
necessary to make a decision on the claim. An examination is
deemed "necessary" if the record does not contain sufficient
medical evidence for VA to make a decision on the claim.
The Board finds that reasonable efforts have been made to assist
the veteran in obtaining evidence necessary to substantiate the
claim which is the subject of this decision, and that there is no
reasonable possibility that further assistance would aid in
substantiating the claim.
In particular, the veteran was afforded a VA audiological
examination in April 2002 in connection with this claim, filed in
September 2001. The RO also received from the veteran the report
of a private audiological exam conducted in September 2001. There
is no indication that there exists any additional evidence that
has a bearing on this case that has not been obtained.
Furthermore, the Board finds no need to order another VA
examination at this point; at his hearing in September 2003, the
veteran indicated that he had had no recent treatment specifically
for his bilateral hearing loss disability since the April 2002 VA
examination. Moreover, he described no substantive changes in the
nature of his hearing loss since that exam. Cf. Allday v. Brown,
7 Vet. App. 517, 526 (1995) [where record does not adequately
reveal current state of claimant's disability, fulfillment of
statutory duty to assist requires a contemporaneous medical
examination, particularly if there is no additional medical
evidence which adequately addresses the level of impairment of the
disability since the previous examination].
The veteran and his representative have been accorded ample
opportunity to present evidence and argument in support of this
appeal. The veteran was informed of his right to a hearing and
was presented several options for presenting personal testimony;
and as noted above in the Introduction, the veteran appeared
before the undersigned at a personal hearing in September 2003,
the transcript of which is of record.
In short, the Board has carefully considered the provisions of the
VCAA, and for the reasons expressed above finds that the
development of this increased rating claim for bilateral hearing
loss has been consistent with the provisions of the new law.
Quartuccio, supra.
Under these circumstances, the Board can identify no further
development that would avail the veteran or aid the Board's
inquiry. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).
Accordingly, the Board will proceed to a decision on the merits.
Pertinent law and regulations
Increased disability ratings - in general
Disability evaluations are determined by the application of the
VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R.
Part 4 (2003). The percentage ratings contained in the Rating
Schedule represent, as far as can be practicably determined, the
average impairment in earning capacity resulting from diseases and
injuries incurred or aggravated during military service and their
residual conditions in civil occupations. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2003).
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (2003).
Specific schedular criteria - bilateral hearing loss
Disability ratings for hearing loss are derived from a mechanical
application of the rating schedule to the numeric designations
resulting from audiometric testing, as set forth under 38 C.F.R. §
4.85 (2003). See Lendenmann v. Principi, 3 Vet. App. 345 (1992).
The section of the Rating Schedule pertaining to the evaluation of
hearing loss was revised effective June 10, 1999, several years
prior to the veteran's claim filed in September 2001. See 64 Fed.
Reg. 25,202 (1999) (codified at 38 C.F.R. § 4.85-4.87).
Consequently, only the revised version of the schedule is for
application in this case. Cf. Karnas v. Derwinski, 1 Vet. App.
308 (1991); but see Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir.
2003) and VAOPGCPREC 7-03 (Nov. 19, 2003) ["Karnas" rule has since
been eviscerated to a considerable degree by the Kuzma decision of
the Federal Circuit, as interpreted by VA's General Counsel].
The revised rating schedule establishes 11 auditory hearing acuity
levels based on average puretone thresholds and speech
discrimination that are essentially identical to the rating
schedule in effect prior to June 1999. In addition, however, the
revised rating schedule provides that when the puretone threshold
at each of the four specified frequencies 1000, 2000, 3000, 4000
Hertz is 55 decibels or more, which is for application in this
case, as described below, the rating specialist will determine the
Roman numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral. Each
ear will be evaluated separately. When the puretone threshold is
30 decibels or less at 1,000 Hertz, and 70 decibels or more at
2,000 Hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either table VI or
table VI(a), whichever results in the higher numeral. That
numeral will then be elevated to the next higher Roman numeral.
Each ear will be evaluated separately. 38 C.F.R. §§ 4.85, 4.86
(2003).
Factual background
A request for an increased rating must be viewed in light of the
entire relevant medical history. See 38 C.F.R. § 4.1 (2003);
Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). In a case such
as this, however, where entitlement to compensation has already
been established and an increase in the disability rating is at
issue, the present level of disability is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55 (1994).
Historically, the record shows that service connection for
compensation purposes was first established for right hearing loss
in 1945. The veteran's 10 percent rating for his right ear
hearing loss disability has been continuously in effect since
April 1955. As noted above, the veteran's present claim was filed
in September 2001; in connection with this claim, the veteran was
evaluated on VA audiological examination in April 2002. He also
was evaluated by a private audiologist in September 2001, the
report of which he submitted with this claim. Based on these exam
results, service connection for the left ear was established and
the veteran's disability is now rated as bilateral hearing loss.
The audiometric test results of these two examinations will be
further detailed below in the Board's analysis section of this
decision. The Board observes that no other recent medical
evidence relevant to the veteran's bilateral hearing loss was
filed in connection with this claim.
The veteran also offered testimony concerning the disabling nature
of his hearing loss at his hearing before the undersigned in
September 2003; in essence, he along with his wife and daughter
testified to the everyday difficulties he encountered due to his
hearing loss, to include problems with background noise,
especially in connection with using the telephone. He also
testified that he needed to turn his head while driving to listen
to his wife with his "good" left ear on account of his deafness in
his right ear, and that he frequently read lips to better
understand what someone was saying.
Analysis
Schedular rating
The veteran seeks entitlement to a higher disability rating for
his service-connected bilateral hearing loss. As indicated above,
the resolution of this issue involves determining the level of
hearing acuity in each ear.
As discussed above, the only pertinent evidence obtained in
connection with the present appeal consists of the reports of a VA
audiological examination conducted in April 2002 and the report of
a private audio exam conducted in September 2001. Hence, while
there are prior-dated examination reports of record, given the
strict, mechanical nature of determining the appropriate current
rating for hearing loss under the Rating Schedule, 38 C.F.R. §
4.85, only these two examinations are probative to the outcome of
this increased rating claim. Lendenmann and Francisco, both
supra.
Furthermore, the Board observes that the September 2001 private
audio exam has limited probative value to the outcome of this
case. Pursuant to 38 C.F.R. 4.85(a), an examination for hearing
impairment for VA purposes must be conducted by a state-licensed
audiologist and must include a controlled speech discrimination
test (Maryland CNC) and a puretone audiometry test. In addition,
the examination must be conducted without benefit of hearing aids.
From review of the single-page exam report conducted by a Dr. R.
B., M.D., in September 2001, it is unclear whether this exam was
conducted in accordance with the section 4.85(a) requirements.
For example, there is a score of 30 given for the speech reception
threshold for the left ear, but not for the right ear, and the
examiner recorded a speech discrimination score for the left ear
but not for the right, although there is no indication that the
test was given under the Maryland CNC guidelines. Admittedly, the
examiner reported that the veteran had essentially no hearing in
the right ear ("[right] ear no response"), which probably explains
why these test results were not reported.
Nevertheless, the VA schedular criteria require such test scores
for both ears for evaluating bilateral hearing loss, as was done
on the April 2002 VA audiological examination. For these reasons,
the Board finds that the probative value of this private exam is
negligible as not in compliance with section 4.85(a) of the
regulations. Accordingly, only the exam results taken from the
April 2002 VA exam will be applied to determine the appropriate
rating to be assigned.
The VA audiological examination conducted in April 2002 indicated
that puretone thresholds for the 1000, 2000, 3000 and 4000 Hertz
frequencies were the following for the right ear, respectively:
90, 90, 95, and 105+, which produces an average puretone threshold
of 95; and, for the left, 20, 20, 40 and 50, which produces an
average puretone threshold of 33. Word recognition scores taken
at that time were zero percent for the right ear and 88 percent
for the left ear. Review of the summary report of this exam
reflects that it was conducted in compliance with the 38 C.F.R. §
4.85(a) requirements (VA audiologist conducted exam; CNC word test
used, etc.).
The veteran's scores for the right ear require consideration for
exceptional hearing loss under 38 C.F.R. § 4.86 (thresholds above
55 decibels for each of the four Hertz frequencies); however,
applying these values to the rating criteria results in a numeric
designation of level XI (highest level of hearing loss) whether
considered under the regular standards (Table VI) or for
exceptional patterns of hearing loss (Table VIA). Applying the
values tested for the left ear in April 2002 results in a numeric
designation of II under these same criteria. Consequently, the
results of the April 2002 VA audiology examination shows that
application of the level of hearing impairment for VA purposes
warrants no higher than a 10 percent rating. That is, the
combination of level II in the better (left) ear with level XI in
the poorer (right) ear under Table VII of 38 C.F.R. § 4.85 results
in a 10 percent rating.
The Board acknowledges that the 2002 VA examination report
documents that the veteran has diminished hearing in both ears,
with profound hearing loss in the right ear. This is not in
dispute; the currently assigned 10 percent rating is indicative of
diminished hearing. With respect to the assignment of an
increased rating, the question which must be answered by the Board
is whether the schedular criteria have been met. The schedular
criteria are specific, and as explained above the veteran's
hearing loss is not of sufficient severity to warrant higher than
a 10 percent rating. Lendenmann, 3 Vet. App. at 349. For these
reasons, an increased rating above 10 percent cannot be assigned.
The Board notes that the veteran has testified to the problems he
experiences with hearing loss, even with his hearing aids. There
is no reason whatsoever to doubt the veteran's testimony. The
Board wishes to make it clear, however, that under the Rating
Schedule, the fact that a veteran's hearing is less than optimal
or that a hearing loss has been diagnosed in certain frequencies
does not translate into a higher disability rating. Indeed, the
Rating Schedule, which has been described above, makes it clear
that monetary compensation may be awarded only when a veteran's
hearing has degraded to a certain measurable level. In this case,
the level of disability that warrants a higher disability (20
percent or more) rating has not been demonstrated by the
application of the audiometric test results to the schedular
criteria.
The Board finds further that to the extent the veteran believes he
is entitled to a higher rating for his bilateral hearing loss, his
contentions are outweighed by the medical evidence cited above
which has been found more probative to the issue on appeal and
which does not support an award of a higher rating. Consideration
has been given to the potential application of the various
provisions of 38 C.F.R. Parts 3 and 4, whether or not they were
raised by the veteran. See Schafrath v. Derwinski, 1 Vet. App.
589 (1991). However, it is the Board's conclusion that the
currently assigned disability rating for his bilateral hearing
loss accurately reflects the level of impairment pursuant to the
schedular criteria.
It should be again emphasized that the medical evidence of record
cited above specifically outweighs the veteran's own views as to
the etiology of his complaints and/or the extent of functional
impairment caused by the hearing loss disability. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992) [lay assertions will not
support a finding on questions requiring medical expertise or
knowledge].
In summary, on review of the entire evidence of record, it is the
Board's conclusion that a preponderance of the evidence is against
the veteran's claim of entitlement to an increased disability
rating for his service-connected bilateral hearing loss. Having
found a preponderance of the evidence against the claim, it
follows that the negative evidence is not in a state of equipoise
with the positive evidence to provide a basis for an award. The
benefit sought on appeal is therefore denied.
Extraschedular rating
The RO concluded that an extrachedular evaluation was not
warranted. The Board has therefore considered whether the
veteran's bilateral hearing loss disability warrants referral for
extraschedular consideration. See VAOPGCPREC 6-96; see also
Bagwell v. Brown, 9 Vet. App. 337, 339 (1996)
According to the regulation, an extraschedular disability rating
is warranted upon a finding that "the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent periods
of hospitalization that would render impractical the application
of the regular schedular standards." 38 C.F.R. § 3.321(b)(1)
(2003).
There is no evidence of an unusual clinical picture, symptoms
which are out of the ordinary, or any other factor which could be
characterized as exceptional or unusual regarding the veteran's
hearing loss. The examination reports have been described above,
and these contain no statement from any examiner that the
veteran's hearing loss disability is in any way out of the
ordinary clinically. There also is no evidence of hospitalization
for hearing loss, either in the recent or remote past. With
respect to a possible employment handicap, the veteran testified
that he had been retired for many years (since 1980), and
therefore, the Board finds no basis to conclude that any current
employment handicap exists. The fact that the veteran testified
that he could have been promoted but for his hearing loss during
his working years does not support a finding of exceptional
disability; the record must show current and ongoing marked
interference with employment, which is obviously not present.
The Board observes in passing that it has no reason to doubt that
the veteran's hearing loss interferes with his daily activities,
such as using the phone or hearing well out in public. However,
such interference is recognized in the currently assigned 10
percent disability rating. See Moyer v. Derwinski, 2 Vet. App.
289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993) [noting that the disability rating itself is recognition
that one's capabilities are impaired].
In short, the Board has been unable to identify any other factor
consistent with an exceptional or unusual disability picture, and
the veteran has identified none. Accordingly, a referral for
extraschedular evaluation is not warranted for the bilateral
hearing loss disability.
ORDER
Entitlement to an increased disability rating for bilateral
hearing loss is denied.
____________________________________________
MARK J. SWIATEK
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or
Board) is the final decision for all issues addressed in the
"Order" section of the decision. The Board may also choose to
remand an issue or issues to the local VA office for additional
development. If the Board did this in your case, then a "Remand"
section follows the "Order." However, you cannot appeal an issue
remanded to the local VA office because a remand is not a final
decision. The advice below on how to appeal a claim applies only
to issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not
need to do anything. We will return your file to your local VA
office to implement the BVA's decision. However, if you are not
satisfied with the Board's decision on any or all of the issues
allowed, denied, or dismissed, you have the following options,
which are listed in no particular order of importance:
* Appeal to the United States Court of Appeals for Veterans Claims
(Court)
* File with the Board a motion for reconsideration of this
decision
* File with the Board a motion to vacate this decision
* File with the Board a motion for revision of this decision based
on clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to
also:
* Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a
motion to vacate, or a motion for revision based on clear and
unmistakable error with the Board, or a claim to reopen at the
local VA office. None of these things is mutually exclusive - you
can do all five things at the same time if you wish. However, if
you file a Notice of Appeal with the Court and a motion with the
Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the
Court before you file a motion with the BVA, the BVA will not be
able to consider your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120
days from the date this decision was mailed to you (as shown on
the first page of this decision) to file a Notice of Appeal with
the United States Court of Appeals for Veterans Claims. If you
also want to file a motion for reconsideration or a motion to
vacate, you will still have time to appeal to the Court. As long
as you file your motion(s) with the Board within 120 days of the
date this decision was mailed to you, you will then have another
120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.
You should know that even if you have a representative, as
discussed below, it is your responsibility to make sure that your
appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans
Claims? Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure
for filing a Notice of Appeal, the filing fee (or a motion to
waive the filing fee if payment would cause financial hardship),
and other matters covered by the Court's rules directly from the
Court. You can also get this information from the Court's web site
on the Internet at www.vetapp.uscourts.gov, and you can download
forms directly from that website. The Court's facsimile number is
(202) 501-5848.
To ensure full protection of your right of appeal to the Court,
you must file your Notice of Appeal with the Court, not with the
Board, or any other VA office.
How do I file a motion for reconsideration? You can file a motion
asking the BVA to reconsider any part of this decision by writing
a letter to the BVA stating why you believe that the BVA committed
an obvious error of fact or law in this decision, or stating that
new and material military service records have been discovered
that apply to your appeal. If the BVA has decided more than one
issue, be sure to tell us which issue(s) you want reconsidered.
Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA FORM
JUN 2003 (RS)
4597
Page 1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the
BVA to vacate any part of this decision by writing a letter to the
BVA stating why you believe you were denied due process of law
during your appeal. For example, you were denied your right to
representation through action or inaction by VA personnel, you
were not provided a Statement of the Case or Supplemental
Statement of the Case, or you did not get a personal hearing that
you requested. You can also file a motion to vacate any part of
this decision on the basis that the Board allowed benefits based
on false or fraudulent evidence. Send this motion to the address
above for the Director, Management and Administration, at the
Board. Remember, the Board places no time limit on filing a
motion to vacate, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis
of clear and unmistakable error? You can file a motion asking that
the Board revise this decision if you believe that the decision is
based on "clear and unmistakable error" (CUE). Send this motion
to the address above for the Director, Management and
Administration, at the Board. You should be careful when preparing
such a motion because it must meet specific requirements, and the
Board will not review a final decision on this basis more than
once. You should carefully review the Board's Rules of Practice on
CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on
filing a CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to
reopen your claim by simply sending them a statement indicating
that you want to reopen your claim. However, to be successful in
reopening your claim, you must submit new and material evidence to
that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always
represent yourself in any claim before VA, including the BVA, but
you can also appoint someone to represent you. An accredited
representative of a recognized service organization may represent
you free of charge. VA approves these organizations to help
veterans, service members, and dependents prepare their claims and
present them to VA. An accredited representative works for the
service organization and knows how to prepare and present claims.
You can find a listing of these organizations on the Internet at:
www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is
not a lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than
before VA, then you can get information on how to do so by writing
directly to the Court. Upon request, the Court will provide you
with a state-by-state listing of persons admitted to practice
before the Court who have indicated their availability to
represent appellants. This information is also provided on the
Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for
a claim involving a home or small business VA loan under Chapter
37 of title 38, United States Code, attorneys or agents cannot
charge you a fee or accept payment for services they provide
before the date BVA makes a final decision on your appeal. If you
hire an attorney or accredited agent within 1 year of a final BVA
decision, then the attorney or agent is allowed to charge you a
fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the
Court. VA cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or
agent may charge you a reasonable fee for services involving a VA
home loan or small business loan. For more information, read
section 5904, title 38, United States Code.
In all cases, a copy of any fee agreement between you and an
attorney or accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion
asking the Board to do so. Send such a motion to the address above
for the Office of the Senior Deputy Vice Chairman at the Board.
VA FORM
JUN 2003 (RS)
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